Thursday, March 29, 2012

This week the Supreme Court took up the recent federal health care reforms in oral argument. The questions the justices ask during oral argument do not necessarily indicate how they will rule. It is also not a very good idea to try and predict how the justices will rule on any given issue. Still it is at least likely though not certain that there is a 5-4 majority to strike down at least the individual mandate as exceeding congress' commerce clause powers.

The idea is that congress has enumerated powers under the constitution. The very concept of enumerated powers is meant as a limitation on federal power. It means that the federal government has certain powers, but no powers beyond those. An individual mandate is something that a state could adopt assuming that its own constitution does not prevent that. However, it is probably not something that the federal government can do. At some point there has to be some limitation on congress' power regardless of how far the Supreme Court has pushed the commerce clause since the new deal era. Similarly, the necessary and proper clause cannot justify plenary federal power. It too must have a limit at some point. Of course, the federal government could simply link something such as federal highway funds to a health insurance mandate by requiring that states enact the mandate as a condition for receiving federal money. The federal government required states to set their drinking age at 21 as a condition for receiving highway funds at one point.

Tuesday, March 20, 2012

Today, the U.S. Supreme Court issued a 5-4 opinion in the case Coleman v. Court of Appeals of Maryland. The issue was whether a state could be sued for money damages for firing an employee for taking time off using the self-care provision of the Family and Medical Leave Act of 1993 (FMLA). The FMLA allows an employee to take up to 12 weeks of unpaid leave to recover from serious illnesses or medical conditions. While states can be sued for money damages for violating the FMLA in terms of unpaid leave for employees who take time off to care for ill family members, in the case of self-care time off they cannot be as state sovereign immunity applies. Instead the employee can sue for injunctive relief to get their job back.

Friday, March 16, 2012

The link below is to a tragic situation in Florida involving Florida's stand your ground laws. I'm not going to get deeply into the facts on this one other than to point out that the shooting happened outside in the parking lot of a gated community. The local law enforcement decided not to arrest the shooter or press charges due to the stand your ground self-defense statute. The state authorities are also investigating and I suspect that the federal government will definitely get involved if Florida declines to prosecute the case. The story is linked below.

At common law self-defense in both civil and criminal cases required retreat before using deadly force unless a person asserting self-defense is in their own home. The modern trend is for states to modify this rule by statute. Florida is one state that has significantly modified the rule by statute. The stand your ground laws do away with the duty to retreat in many settings outside of the home.

The point of the duty to retreat is obviously to see if a situation can be resolved without resorting to deadly force. Eliminating the duty to retreat tends to escalate situations. People have a tendency to resort to the method of self-defense that is safest for themselves even if it is wholly disproportionate to the situation. This is particularly true as a person feeling threatened may not accurately assess the actual level of danger presented by a situation and is likely to over-react especially if they have a gun. Whereas over-reaction with less than deadly force will likely end without anyone getting killed, over-reaction with deadly force will problem end with a death.

There are most likely other factors at play in the case discussed in the article. The most obvious one, and the one that might lead to federal charges, is race. However, I only wanted to write about the stand your ground statutes in general so I'm not going to get into that today.

Sunday, March 11, 2012

Last night on CNN I saw the documentary linked below on the canonization process in the Catholic Church. The story is about one particular cause for sainthood. The role of lay lawyers acting as postulators in this process is intriguing. The story doesn't offer much detail about the work they do, but it is interesting nonetheless.

Thursday, March 8, 2012

As expected the pardon power wins out over superficial notice requirements. The Mississippi Supreme Court ruled all 198 pradons valid. The major issue is that of separation of powers. The judiciary simply can't intrude into the executive's pardon and commutation power nor can the legislature. The real question is why some of these pardons were issued in the first place. In the end as much as they may not like it now, the people of Mississippi gave that power to their governor and elected the man to fill the office. Pardons might be something to question the candidates about next campaign. That said, the pardon and commutation power is probably used too sparingly in modern government. It is likely it will be used even less after this episode.

Wednesday, March 7, 2012

Proposal 2, an amendment to the Michigan Constitution banning the use of affirmative action with facially neutral language, passed in the November 2006 general election with 58% support.

The amendment reads:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.

This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.

Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.

The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.

This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.

This section applies only to action taken after the effective date of this section.

This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.

Opponents of the ballot initiative sued in U.S. District Court. The amendment was upheld as constitutional by Judge David Lawson. Last year the U.S. Sixth Circuit Court of Appeals 3 judge panel reversed in a 2-1 decision asserting that the constitutional amendment reorders Michigan's political process to place special burdens on minorities. It appears that the panel was of the opinion that taking the issue to the statewide constitutional ballot initiative level and consequently away from the discretion of the individual college/university administrations was a reordering of the state's political process. The full Sixth Circuit agreed to consider the case en banc meaning that the ruling of the panel overturning the law was vacated and all the judges on the Sixth Circuit will consider the case and issue a ruling. A split opinion is certain on this one. The only question is will one side or the other come out with more votes. If the judges split evenly the district court ruling that the amendment is constitutional will be affirmed by default.

Monday, March 5, 2012

The Supreme Court will rehear argument on Kiobel v. Royal Dutch Shell Petroleum. The arguments last week focused on the issue of whether a corporation could be held liable under international law. I summarized the lower court's ruling in that case in previous blog post. During the oral arguments it was clear that a couple of justices, namely Justice Alito, were more interested in considering whether the law's extraterritoriality was constitutional than whether a corporation could be held liable under international law. It seems that the rationale for the statute when it was passed was to provide a remedy for aliens, usually ambassadors, who were the victims of tortuous activity within the United States.

Sunday, March 4, 2012

The article linked below is about a British case on the valuation at auction of a golden chain of office allegedly from the Tudor period. The valuations referenced are in British Pounds. The original seller, Lord Coleridge, sold it for 35k only to find out that the buyer later sold it for 260k. Coleridge sued, but lost at trial other than getting 20k because the auction house didn't tell him the value of the piece could double in a private sale. Coleridge as the overall losing party has to pay 90% of roughly 1 million in costs under Britain's loser pays system.

Saturday, March 3, 2012

A Cook County judge ruled that Illinois' eavesdropping law was too broad and hence could criminalize innocent behavior. Illinois' law is considerably broader than those in other states so its fall would not have a huge impact elsewhere except to the extent that other states won't adopt similar statutes.

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About Me

I am a lawyer licensed to practice in Michigan, California, and Florida and before the United States Supreme Court, the United States District Court for the Eastern District of Michigan, and the United States District Court for the Central District of California.